2009 TOB NG Order

Case 2:05-cv-01945-JMA-AKT Document 94 Filed 05/14/09 Page 1 of 63 PageID #: 1667
FILED
1N OlEA'K'S OFFfCE
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UNITED STATES DISTRICT COURT EDJN.y.
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TOWN OF OYSTER BAY, LO~G I'StAND OFFiCI:
Plaintiff, 05-CV-1945 (TCP)
-against-
MEMORANDUM
AND ORDER
NORTHROP GRUMMAN SYSTEMS
CORPORATION (f/k/a Northrop Grumman
Corporation), THE UNITED STATES NAVY
and THE UNITED STATES OF AMERICA,
Defendants.
----------------------------------------------------------X
PLATT, District Judge.
Before the Court are three motions each requesting summary judgment
pursuant to Federal Rule of Civil Procedure 56. The Town of Oyster Bay
("Town" or "plaintiff') seeks summary judgment against Northrop Grumman
Systems Corporation ("NGSC" or "defendant") and against the United States and
the United States Navy (collectively "federal defendants"). NGSC seeks summary
judgment against plaintiff. The federal defendants move to have plaintiffs
second amended complaint dismissed or, in the alternative, for summary judgment
against plaintiff.
Plaintiff's motion for summary judgment against NGSC is hereby
DENIED. Plaintiffs motion for summary judgment against the federal
defendants is hereby DENIED. NGSC's motion for summary judgment against
plaintiff is hereby GRANTED. The federal defendants' motion for summary
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judgment is hereby GRANTED.
I. BACKGROUND
A. Plaintiff's Claims
Plaintiff s Second Amended Complaint seeks the following relief:
a. As a First Cause of Action, pursuant to 42 U.S.C. § 9607, a

judgment holding defendants jointly and severally liable to
plaintiff for all response costs incurred by plaintiff in
connection with the release of hazardous substances at the
Park, plus interest;
b. As a Second Cause of Action pursuant to 42 U.S.C. § 9613,

a judgment holding defendants liable for contribution of all
response costs incurred in connection with the
Administrative Order on Consent arising from hazardous
substances on the Park Property which plaintiff may be
obligated to pay in excess of the fair and equitable amount
attributed to plaintiff s acts or omissions;
c. As a Third Cause of Action, plaintiff seeks a declaratory

judgment holding defendants liable to plaintiff for all future
response costs and damages as a result of hazardous
substances in the Park Property;
d. As a Fourth Cause of Action based on defendants'

negligence, a judgment holding defendants liable for
damages associated with the contamination of the Park
Property in an amount of not less than one million dollars
($1,000,000);
e. As a Fifth Cause of Action based on strict liability for

defendants' ultrahazardous and/or abnormally dangerous
activities, a judgment holding defendants liable for
damages in an amount of not less than one million dollars
($1,000,000);
f. As a Sixth Cause of Action for restitution based on the

unjust enrichment of defendants, a judgment holding
defendants liable for damages in an amount of not less than
one million dollars ($1,000,000);
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g. As a Seventh Cause of Action for contribution, a judgment

holding defendants liable for contribution of all expenses
and damages related to contamination of the Park property
which exceed the amount, if any, attributable to plaintiffs
own conduct; and
h. Plaintiff also seeks reimbursement for fees, expenses and

costs.
B. Facts
The Bethpage Community Park ("Park") is located on an eighteen (18)
acre parcel of land in Bethpage, New York and is currently owned and operated
by plaintiff. PIt. 56.1 Stmt. ,-r 1. The land upon which the Park is located was
formerly owned by Grumman Aircraft Engineering Corporation, later known as
Grumman Aerospace Corporation, a predecessor in interest to defendant NGSC.
NGSC 56.1 Ctr. Stmt. ,-r 2. 1 Grumman Aircraft Engineering Corporation acquired
the property in July 1941 and transferred it to the town in October 1962. NGSC
56.1 Ctr. Stmt. ,-r 3; PIt. 56.1 Stmt. ,-r 4. In 2002, the New York State Department
of Environmental Conservation ("DEC") requested that NGSC obtain soil
samples from the Park and NGSC obtained soil samples from park property
during the years 2002 and 2003. PIt. 56.1 Stmt. ,-r,-r 5,6. Said samples were
analyzed and the presence of the contaminant chromium was found in at least
some of the samples from the Park property. PIt. 56.1 Stmt.,-r,-r 7,8; NGSC 56.1
Ctr. Stmt. ,-r 8.
Chromium is a hazardous substance as defined by the Comprehensive
1. The federal defendants adopt the majority of the representations set forth in defendant NGSC's
56.1 statement and counter-statement; to the extent the parties' representations differ, it is so noted.
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Environmental Response Compensation and Liability Act ("CERCLA"). See 42
U.S.C. § 9601(14) (cross referencing statutes that define "chromium" and
"chromium compounds" as CERCLA hazardous substances); 40 C.F.R. § 302.4
(identifying "chromium" and "chromium compounds" as CERCLA hazardous
substances). PIt. 56.1 Stmt. ~ 9. Plaintiff claims that the levels of chromium
present in the soils at the Park exceed criteria deemed acceptable by the DEC as
per the DEC's table in its Technical and Administrative Guidance Memorandum
("TAGM") 4046; defendants, however, state that the DEC does not consider all
levels above the criteria in TAGM 4046 to be unacceptable in all cases. With
regard to the Park, the DEC determined that it "would not require removal of sub
surface soil that marginally exceeds the [TAGM] soil level cleanups" and that the
"same holds true for most soil samples identified with metal concentrations [such
as chromium] in the [TAGM] range." PIt. 56.1 Stmt. ~ 10; NGSC 56.1 Ctr. Stmt.
'pO.
The analysis of the Park soil samples also demonstrated that levels of
polychlorinated biphenyls (PCBs) were present in the property's soil. PCBs are
hazardous substances as defined by 42 U.S.C. § 9601(14) and 40 C.F.R. § 302.4.
PIt. 56.1 Stmt. ~~ 11,12. As set forth in the TAGM 4046, the levels of PCBs
present in the Park's soil exceeded the level deemed acceptable by the DEC. PIt.
56.1 Stmt. ~ 13. In this case, however, the DEC determined that "most soil
surface (0 to 2 feet)" may remain "in place with no further action with respect to
PCBs" and concluded that plaintiff s report "actually provides a strong argument
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why most of these risks are all for reasonable considerations, minor or even non
existent." NGSC 56.1 Ctr. Stmt. ~ 13. Other hazardous substances as defined by
CERCLA § 9601 were also found in the soil samples including but not limited to
arsenic, barium, cadmium, lead, mercury and selenium. PIt. 56.1 Stmt. ~ 14.
Plaintiff claims that it asked the DEC to pennit it to remediate a seven (7)
acre portion of the Park ("Construction Area") for the purposes of constructing an
ice rink within that area and to put back into service some ofthe Park's facilities
for town residents, which statement defendants dispute as not being based on
competent evidence. PIt. 56.1 Stmt. ,r 15; NGSC 56.1 Ctr. Stmt. ~ 15. The Town
also claims that in March 2005, it voluntarily entered into an Order on Consent
("Consent Order") with the DEC which statement defendants also controvert
based on the lack of evidence that the Town's compliance was voluntary and
despite the fact that the Order is deemed a "consent" order. PIt. 56.1 Stmt. ~ 16;
NGSC 56.1 Ctr. Stmt. ~ 16. The Town also asserts that the Consent Order
required it to investigate the extent of the presence of contamination of the soil in
the Construction Area which the defendants do not dispute to the extent that the
Town entered into the Consent Order to perfonn an "Interim Remedial Measure
("IRM")" within the site, i.e., the "portion of the Park where the Rink will be
constructed." PIt. 56.1 Stmt. ~ 17.
Pursuant to the Consent Order, the Town was to develop a Work Plan
which was to be captioned based on the work being perfonned, to wit: "Site
Characterization Work Plan"; "Remedial Investigation/Feasibility Study Work
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Plan"; "IRM Work Plan"; "Remedial DesignlRemedial Action Work Plan"; or
"OM & M Work Plan" and all actions taken by the Town to discharge its
obligations were to be approved by the DEC ( PIt. Exhibits in Support of 56.1
Stmt., Ex. 18, p.2). PIt. 56.1 Stmt. ~~ 18,19. The Consent Order also required
that all actions taken by the Town to discharge its obligations be consistent with
CERCLA and with the National Contingency Plan ("NCP") (PIt. Exhibits in
Support of 56.1 Stmt., Ex. 18, p.2). PIt. 56.1 Stmt. ~ 20.
The H2M Group, environmental consultants, conducted an analysis of the
soil samples in the Construction Area on behalf of the Town and an analysis of
those samples disclosed the presence of chromium in the soil at one or more
locations at a depth exceeding forty (40) feet below the surface. PIt. 56.1 Stmt. ~~
21, 22; NGSC 56.1 Ctr. Stmt. ~ 22. The analysis also revealed that PCB
concentrations exceeded 1 ppm in 48 of 141 boring locations; exceeded 10 ppm in
10 ofthe 141 boring locations and was 550 ppm in one location. NGSC 56.1 Ctr.
Stmt. ~ 23. The analysis also disclosed the presence of other CERCLA hazardous
substances, including but not limited to arsenic, barium, beryllium, cadmium,
copper, iron, magnesium, mercury, nickel, selenium and zinc which were present
in one or more locations within the Construction Area at a depth that exceeded
forty (40) feet. PIt. 56.1 Stmt. ~ 24; NGSC 56.1 Ctr. Stmt. ~ 24.
In November 2005, plaintiff submitted an Investigation Report and
Remedial Action Plan ("November 2005 Plan") to the DEC which was prepared
by H2M and which called for the excavation of soil to a depth of ten (10) feet
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throughout much of plaintiffs Construction Area and additional amounts in some
areas. NGSC 56.1 Stmt. ~~ 6, 7. Plaintiff estimated that the "proposed volume
soil to be excavated totals approximately 100,000 cubic yards," although the Plan
did not publish a cost estimate or compare the cost effectiveness between the
proposed plan and alternative remedies. NGSC 56.1 Stmt. ~~ 8, 9. In December
2005, plaintiff submitted a supplemental report prepared by H2M to the DEC
which proposed additional evacuation. NGSC 56.1 Stmt. ~ 10.
In correspondence dated February 10, 2006, the DEC recommended that
the Town amend its remedial action plan to include an analysis which screened
various remedial alternatives so as to select a cost-effective remedy for the soil
within the Construction Area. PIt. 56.1 Stmt. ~ 25. The DEC commented that the
"magnitude of work and the level of effort" required by plaintiffs remedial plan
"is very extensive and well beyond what NYSDEC would normally require."
NGSC 56.1 Stmt. ~12. Additionally, the NYSDEC stated that "[g]iven the
analytical results generated as part of the IRM program and[] the proposed use,
the NYSDEC would not require removal of sub-surface soil that marginally
exceeds the soil cleanup levels" and that "most surface soil (0 to 2 feet)" could
remain "in place with no further action with respect to PCBs," and that the "same
holds true for most soil samples identified with metal concentrations in the
[guidance level] range." NGSC 56.1 Stmt. ~~ 13, 14.
The DEC's letter also advised plaintiff to evaluate remedial alternatives to
ensure selection of a "cost-effective remedy" and also commented that plaintiff
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had not presented cost estimates for its remedial plan. In addition, the DEC also
concluded that plaintiffs submission "actually provides a strong argument why
most of these risks are for all reasonable considerations, minor or even non
existent." NGSC 56.1 Stmt. ~~ 15, 16, 17.
In March 2006, the Town submitted its "Addendum to the Remedial
Action Plan," which, inter alia, presented and evaluated five (5) remedial
alternatives to address the soil contamination within the Construction Area
although defendants partially dispute this statement by contending that the Town's
remedial plans numbered one and five were not discussed in connection with the
DEC's criteria. PIt. 56.1 Stmt. ~~ 26,27; NGSC 56.1 Ctr. Stmt. ~ 27. Plaintiffs
November 2005 Plan, as supplemented by its December 2005 submission was
designated Remedial Alternative 4 and plaintiff estimated that it would cost $19
million to implement. NGSC 56.1 Stmt. ~~ 20,23. Remedial Alternative 2 called
for barrier technology and institutional controls in lieu of massive excavation and
off-site disposal and plaintiff estimated that it would cost $6 million. NGSC 56.1
Stmt. ~~ 21,22.
On May 4, 2006, plaintiff contends that the DEC approved the remedial
alternative selected by the Town with which defendants disagree given the DEC's
letter which states that it accepts the Remedial Action Plan sblected by the Town,
subject to the following:
The level ofremedial effort for Alternative 4 is beyond what the NYSDEC
would require given the analytical results generated as part of the IRM
program. The Town was recently advised of this fact by the NYSDEC.
The Town, nonetheless, has determined to implement Remedial
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Alternative 4. Accordingly the NYSDEC will approve the remedial

alternative, as it is protective of public health and the environment.
Defendants also dispute plaintiffs contention on the basis that the NYSDEC
approved Remedial Alternative 2 as "fully protective of human health and the
environment" and "cost-effective," and stated that plaintiff was proceeding with
Remedial Alternative 4 on its own choice. PH. 56.1 Stmt. ~ 28; NGSC 56.1 Ctr.
Stmt. ~ 28. Remedial Alternative 4 required remediation to ten (l0) feet plus
targeted removal of fill areas and the Town states that it executed Remedial
Alternative 4 with the oversight and approval of the DEC which statement
defendants dispute as not based on credible evidence. PIt. 56.1 Stmt. ~~ 29,30;
NGSC 56.1 Ctr. Stmt. ~~ 29, 30. In correspondence dated October 27,2006, the
DEC advised plaintiffthat "the magnitude of work and the level of effort for"
plaintiffs plan "is very extensive, and well beyond what the NYSDEC would
require." NGSC 56.1 Stmt. ~ 26.
The DEC found that Remedial Alternative 2 was "fully protective of
human health and the environment and cost-effective" and that Remedial
Alternative 4 was "one of the largest ever for the NYSDEC Region One." NGSC
56.1 Stmt. ~~ 27,29. If the DEC were in charge of the remediation project, it
would not have selected Remedial Alternative 4. NGSC 56.1 Stmt. ~ 31.
Remedial Alternative 2 would have protected "human health and the
environment" as stated by the DEC and would have complied with its work
requirements. NGSC 56.1 Stmt. ~~ 32,33.
Additionally, the New York Department of Health stated that remedial
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alternatives other than Remedial Alternative 4 would fully protect human health
and that "there are other alternatives that would include less soil excavation,
transportation and disposal efforts and remain protective of human health."
NGSC 56.1 Stmt. ~ 28.
Plaintiffs environmental consultant and expert witness Philip Schade has
stated that Remedial Alternatives 2 and 3 were "encumbered with exposure
concerns and health and safety requirements for any future site work below
grade," including "future site renovation and maintenance operations such as
installation of footings, support buildings, recreational equipment, fencing, lamp
posts, new pavement revised drain piping, new foundations and revised surface
gradients." Plt. 56.1 Ctr. Stmt. ~ 37.
The Town expended in excess of $22,000,000 investigating the extent of
contamination in the Construction Area and implementing the DEC-approved
lRM plan based on its decision that, as the land owner, it should determine the
level of cleanup at the site. PIt. 56.1 Stmt. ~ 32; NGSC 56.1 Stmt. ~ 34.
Defendants dispute plaintiffs contention because the NCP requires
documentation of costs which form the basis for recovery and plaintiff failed to
cite to any documentation of its costs. NGSC 56.1 Ctr. Stmt. ~ 32. Defendants
also contend that plaintiffs "goal" has always been to implement Remedial
Alternative 4 and it only prepared alternatives because the DEC directed it to do
so, which statement is undisputed by plaintiff. NGSC 56.1 Stmt. ~ 38; PIt. 56.1
Ctr. Stmt. ~ 38.
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Plaintiff also states that Grumman conducted aircraft manufacturing and
testing operations at two sites that were adjacent to the Park; defendants contend,
however, that this fact is immaterial to plaintiffs summary judgment motion
because it concerns property that is not the subject of plaintiffs Consent Order
and is, therefore, irrelevant to the issue of liability for the area that is the subj ect
of plaintiff s summary judgment motion. PIt. 56.1 Stmt. ~ 33; NGSC 56.1 Ctr.
Stmt. ~ 33. For the same reasons, defendants also object to plaintiffs statement
that Grumman conducted these operations during the 1940s through and including
October 1962, when it transferred the Park property to the Town and one of the
adjacent sites, consisting of approximately 550 acres, and was owned and
operated by Grumman. PIt. 56.1 Stmt. ~~ 34,35; NGSC 56.1 Ctr. Stmt. ~~ 34,35.
The Town also states that the other adjacent site was known as the Naval
Weapons Industrial Plant ("NWIRP") which consisted of approximately 105 acres
and which was owned by the United States Navy and which Grumman operated
on "Government Owned-Contractor Operated" basis pursuant to one or more
"Facility Use Contracts." Defendants also object to these statements as
immaterial to plaintiffs summary judgment motion and on the basis that this
property is not the subject ofplaintiffs Consent Order with the DEC. PIt. 56.1
Stmt. ~~ 36,37,38; NGSC 56.1 Ctr. Stmt. ~~ 36,37,38.
A number of buildings (referred to as "plants") and facilities located on the
Grumman site and the NWIRP were utilized to support Grumman's aircraft
manufacturing and testing operations and a contract for plant facilities, entered
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into between the Navy and Grumman in 1943, provided that items, including
repairs and replacements ofthe plants located on Grumman's property, would
become the sole property of the Navy. Defendants also object to these statements
as immaterial to plaintiffs summary judgment motion and on the basis that this
property is not the subject of plaintiff s Consent Order with the DEC. PIt. 56.1
Stmt. -,r-,r 40, 41; NGSC 56.1 Ctr. Stmt. -,r-,r 40, 41. The federal defendants object to
plaintiffs reliance upon the 1943 contract as misplaced given that the Navy sold
and transferred to NGSC title to Plants 1, 2 and 4, which included the flying field,
buildings and all plant equipment used by Grumman, on December 18, 1947 for
the sum of $3,435,000. As a result, federal defendants assert that the 1943
contract would have been terminated and its terms inapplicable to Plant 2 as of the
date of sale. Fed. Def. 56.1 Ctr. Stmt.-,r 41.
Plant 2 was located on the Grumman site, but was owned by the Navy; the
contract between Grumman and the Navy provided that Grumman had to obtain
the approval of the Navy for any additions or alterations to be made to the
structure of Plant 2 and that the Navy provided financing for additions and
alterations made to the structure of Plant 2, to which statements the defendants
also object as being irrelevant to this matter. PIt. 56.1 Stmt. -,r-,r 42, 43, 44; NGSC
56.1 Ctr. Stmt. -,r-,r 42, 43, 44. The federal defendants further assert that the 1943
contract would have been terminated and its terms inapplicable to Plant 2 as of
December 18, 1947, the date the Navy sold Plant 2 to NGSC. Fed. Def. 56.1 Ctr.
Stmt. -,r-,r 42,43,44.
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In or about 1948, the New York State Department of Health detennined
that hexavalent chromium, a hazardous substance pursuant to 42 U.S.c. §
9601(14) and 40 C.F.R. § 302.14, was present at Well No.1 on NWIRP, which
defendants dispute as immaterial to plaintiffs motion for summary judgment for
the foregoing reasons with regard to plaintiffs DEC Order and relevancy for
liability purposes. PIt. 56.1 Stmt. -,r-,r 45, 46; NGSC 56.1 Ctr. Stmt. -,r 45. After the
Navy and the New York State Department of Health detennined that Well No.1
at the NWIRP was contaminated with hexavalent chromium, the Navy approved
plans to construct an industrial wastewater treatment facility which was
constructed in or about 1950 in or around the area where Plant 2 was located. PIt.
56.1 Stmt. -,r-,r 47, 48. Defendants also object to the foregoing as irrelevant to the
property covered under the Consent Order. The federal defendants object to
plaintiffs reliance on the 1943 contract as misplaced because said contract would
have been tenninated and its tenns inapplicable to Plant 2 as of December 18,
1947, the date the Navy sold Plant 2 to NGSC. Fed. Def. 56.1 Ctr. Stmt.-,r 47.
The wastewater treatment plant treated wastewater generated from various
industrial processes conducted at plants located on the Grumman site as well as
wastewater generated from various industrial processes conducted at plants
located on the NWIRP. PIt. 56.1 Stmt. -,r-,r 50, 51. From approximately 1950
through October 1962, hexavalent chromium laden wastewater was transported
from Grumman's aircraft manufacturing and testing operations to the wastewater
treatment facility through influent pipes or a 1,500 gallon tank truck, which truck
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was owned and operated by Grumman. PIt. 56.1 Stmt. ~~ 52, 53. The hexavalent
chromium laden wastewater was transferred to several 11,000 gallon vats in the
wastewater treatment plant for treatment which reduced the hexavalent chromium
in the wastewater from a hexavalent state to a trivalent state. PIt. 56.1 Stmt. ~~ 54,
55. The end product of the wastewater treatment was wastewater and sludge
containing trivalent chromium and the resultant trivalent chromium laden sludge
was then transferred by a piping system and one or more pumps to two 3,000
gallon holding tanks on the north side of the treatment plant. PIt. 56.1 Stmt. ~~
56,57. The trivalent chromium laden sludge was then pumped from the holding
tanks into Grumman's 1500 gallon tank truck which was later deposited onto
sludge drying beds located on the Park property. PIt. 56.1 Stmt. ~~ 58, 59. The
sludge drying beds located on the Park property were approximately twenty feet
wide, twenty feet long and five feet deep and the bottom of these drying beds
consisted of bare soil. PIt. 56.1 Stmt. ~~ 60,61. After the sludge had dried,
Grumman employees used backhoes to scrape the dried sludge from the beds
which was placed into dump trucks and dumped on another part of the Park
property. PIt. 56.1 Stmt. ~~ 62, 63. Defendants object to the foregoing as
irrelevant because plaintiffs Consent Order does not indicate that the contents of
sludge drying beds were placed in the facility which is the subject of said Order.
In or about 1961, Grumman and the Navy began to conduct "autoclave"
operations at Plant 3 which involved three or four machines known as autoclaves.
PIt. 56.1 Stmt. ~~ 64, 65. The autoclave operations were used to heat and cool
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composite structures for curing used in the aircraft manufactured by Grumman for
the Navy and the heating and cooling process in the autoclave operations was
achieved by circulating fluid known as "Therminol, which has a PCB
concentration of approximately 97% to 98%." PIt. 56.1 Stmt. ~~ 66, 67, 68.
Defendants object to this statement as a fact immaterial to plaintiffs motion
because plaintiff fails to demonstrate relevancy for liability issues. The autoclave
operations included separate heating and cooling systems and an intricate network
of tubing that lined the autoclave machines through a large table-like structure
known as a "platen"; this structure had the capacity to hold several thousand
gallons of PCB laden Therminol. PIt. 56.1 Stmt. ~~ 69, 70. The autoclave
machinery and related systems experienced leaks of the PCB-laden Therminol.
PIt. 56.1 Stmt. ~ 71. Grumman was aware of the existence of such leaks as a
result of maintenance performed on the autoclave machinery, specifically
"packing glands" on "positive placement pumps" and the control valves often
required maintenance due to leakage of Therminol. PIt. 56.1 Stmt. ~~ 72, 73.
During maintenance, Grumman employees drained the system of the PCB-laden
Thermino1, which resulted in some of the fluid being spilled onto the floor in the
areas of the autoclave operations. PIt. 56.1 Stmt. ~ 74. There were one or more
floor drains located in the area of the autoclave operations and these floor drains
led to a drywell below Plant 3. PIt. 56.1 Stmt. ~~ 75, 86.
The drywell below Plant 3 discharged into the storm water collection
system, which system was directed to three recharge basins that were located east
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of Plant 3. PIt. 56.1 Stmt. '11'11 87, 88. These recharge basins were approximately
the length and width of a football field and were twenty to thirty feet deep. PIt.
56.1 Stmt. '1189. Before October 1962, the soils at the bottom of these recharge
basins were periodically scraped by Grumman with a bulldozer to restore their
percolation capability and the soils which were scraped from the bottom of these
recharge basins were dried by depositing them on land in the vicinity of the
recharge basins, as well as areas on the Park property. PIt. 56.1 Stmt. '11'1190, 91.
In 2002, the NYSDEC requested that NGSC test soil samples from the
Park property for PCBs. PIt. 56.1 Stmt. '1192. NGSC represented to the DEC that,
as a result of its investigation, NGSC believed that some of the PCB
contamination at the Park resulted from leaks of Therminol originating from the
Plant 3 autoclave operations, which traveled through the storm water system into
the recharge basins on the NWIRP and were deposited on the Park property when
Grumman disposed of the soils scraped from the bottom of the recharge basins.
PIt. 56.1 Stmt. '1193. In the late 1980's through the mid-1990's, NGSC and the
Navy conducted numerous environmental investigations and implemented
remedial activities to address soil and groundwater contamination that existed in
various portions of the Grumman site and the NWIRP. PIt. 56.1 Stmt. '1194.
PCBs and trivalent chromium were among the contaminants found at the
Grumman site as well as other metals within the definition of hazardous
substances as defined by CERCLA. PIt. 56.1 Stmt. '11'1195,96,97. PCBs,
chromium and other metals within the definition of hazardous substances under
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CERCLA were also found at the NWIRP and in the drywell below Plant 3. PIt.
56.1 Stmt. ~~ 98,99, 100, 10l.
The remedial measures that NGSC undertook at the NWIRP included
excavation, up to depths of 30 feet below surface, of PCBs and offsite disposal of
PCBs and soil vapor extraction at the Plant 2 source area. PIt. 56.1 Stmt. ~~ 102,
103. The Facilities Use Contracts between Grumman and the Navy provided that
the Navy owned the waste products resulting from Grumman's aircraft
manufacturing operations that Grumman performed on behalf of the Navy. PIt.
56.1 Stmt. ~ 104. The Facilities Use contracts, however, only applied to use of
Navy-owned real property and not to Grumman-owned property and, as a result,
differed from the production, research and development contracts that governed
NGSC's testing and manufacturing operations. In general, the Facility Use
contract allows a contractor to use facilities to accomplish its performance
pursuant to research and development contracts; these research and development
contracts generally govern title to raw materials used in manufacturing as well as
research and development. In fact, the contract's "Facilities" definition
specifically excludes "Material" from its definition. The Facility Use contracts
differed from the production, research and development contracts which
differentiate between contractor-owned, contractor-acquired and government
furnished property. Fed. Def. 56.1 Ctr. Soot. ~ 104.
The Facilities Use Contracts between Grumman and the Navy provided
that Grumman was responsible for the disposal of waste from the manufacturing
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operations that Grumman performed on behalf of the Navy. PIt. 56.1 Stmt. ~ 105.
The Navy owned some or all ofthe materials used by Grumman in the aircraft
operations that Grumman performed for the Navy and Grumman represented in a
communication with the DEC that the Navy supplied material used by Grumman
in the aircraft operations that Grumman performed for the Navy. PIt. 56.1 Stmt.
~~ 106, 107. The Facilities Use contracts, however, only applied to use of Navy
owned real property and not to Grumman-owned property and, as a result, differed
from the production, research and development contracts that governed NGSC's
testing and manufacturing operations and the waste therefrom. Fed. Def. 56.1 CtI.
Stmt. ~ 106. Other wastes containing hazardous substances that were generated as
a result of Grumman's manufacturing and testing operations for the Navy and
which were disposed of at the Park included: sludge from metal finishing
operations; sludge scraped from recharge basins located on the NWIRP; spent
rags from paint booth operations; and waste oil and jet fuel from fire training
exercises. PIt. 56.1 Stmt. ~ 108.
Defendants state that NGSC donated the eighteen (18) acres that became
the Bethpage State Park to plaintiff in 1962, subject to a deed restriction which
provides that title will revert back to Grumman if the premises cease to be
"publicly owned and used for highway improvement purposes or for park and/or
recreational purposes." NGSC 56.1 Stmt. ~~ 40,41.
On February 18, 1963, plaintiffs consulting engineering firm H2M
submitted an "Engineering Report on the Proposed Bethpage Community Park"
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which stated that the northerly and eastern portions ofthe site consisted of
"undisturbed virgin ground and that the remaining approximately eight (8) acres
had been "until recently, utilized as a borrow pit disposal area." NGSC 56.1 Stmt.
~~ 42,43,45. In implementing Remedial Alternative 4, plaintiff excavated areas
which the 1963 H2M report described as undisturbed virgin ground. NGSC 56.1
Stmt. ~ 44. Plaintiff asserts, however, that H2M's reference to the aforesaid
"undisturbed" northerly and easterly portions of Park Property does not mean that
the land was free from contaminants; rather, the report merely distinguishes
between disturbed and undisturbed soil for the purpose of locating future
structures on the land. PIt. 56.1 Ctr. Stmt. ~~ 43, 44.
Defendants contend that the only contemporaneous documentation that
purports to show the location of a disposal area having been located anywhere
within the Park property is a map dated July 24, 1962, prepared for the Town by
H2M, which identifies a "Waste Disposal Area" located in the southwest comer
of the 18 acre property. NGSC 56.1 Stmt. ~ 46. Plaintiff s expert Frank Vetere,
who prepared the H2M 1963 engineering report, characterized the location and
levels of contaminants throughout plaintiffs Construction Area, including the
previously "undisturbed virgin ground," as "random and throughout the park" and
that he could only "speculate" about how or when PCB's came to be located
within the Construction Area. NGSC 56.1 Stmt. ~~ 47,48. Mr. Vetere also stated
that he does not believe "anybody knows for sure what was happening" with
regard to the other chemicals at the site and that he could only speculate that
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Grumman disposed of waste outside of the aforesaid waste disposal site and about
who buried construction demolition material found within the Construction Area.
NGSC 56.1 Stmt. ~~ 49, 50.
Plaintiff disputes NGSC's statements on the basis that H2M's 1963 report
expressly states that the eight (8) acre site, not including the northerly and easterly
portions of the site, were used as "borrow pit disposal areas[s]." Plaintiff claims
that Mr. Vetere's use of the term "borrow pit" is typically used by engineers and
contractors to refer to areas where usable fill materials are removed for use in
another location. A "disposal area," however, is universally considered a location
to discard waste materials and waste products may be buried in a former borrow
pit after the sand has been removed. Accordingly, plaintiff claims, the 1963 H2M
is a contemporaneous document that identifies the approximately eight (8) acre
area, not including the northerly and easterly portions of the site, as a borrow pit
and a disposal area. PIt. 56.1 Ctr. Stmt. ~ 46. Plaintiff also contends that Mr.
Vetere's deposition testimony with regard to the location and levels of
contaminants in the Construction Area has been mischaracterized by NGSC; Mr.
Vetere's testimony was in response to a question concerning the distribution and
concentration of chemicals in the Park rather than the location and levels in the
Construction Area. PIt. 56.1 Ctr. Stmt. ~ 47. Furthermore, Mr. Vetere testified
that it was a "fair assumption" and "plausible speculation" that the debris in
portions of the Construction Area were placed there by NGSC given that it had
used the Park Property as a disposal area. PIt. 56.1 Ctr. Stmt. ~ 50.
-20
NGSC's expert, Dr. Robert Kaley, concluded that the "sporadic
distribution of PCBs and other materials, such as polynuclear aromatic
hydrocarbons ("PAHs"), both of the surface and at different depths in soil cores, is
consistent with a scenario involving contaminated fill dirt being brought to the
site and moved around during grading and subsequent construction activities"
when plaintiff constructed the park. NGSC 56.1 Stmt. ~ 51. Plaintiff notes,
however, that during Dr. Kaley's deposition, he admitted that he could not
exclude a scenario under which PCB contamination existed on the site prior to the
time the Town took title and that existing PCB contamination was moved to other
portions of the Park during its construction. PIt. 56.1 Ctr. Stmt. ~ 51.
Defendants contend that the conditions described in H2M's 1963
Engineering Report as well as the 1962 map, i.e., an 18 acre site with undisturbed
virgin ground in the northern and eastern areas and a fenced waste disposal area in
the southwestern comer, are consistent with the appearance of the property in an
aerial photograph taken on April 10, 1962. NGSC 56.1 Stmt. ~ 52. An aerial
photograph taken in November 1963 during plaintiffs construction of the Park
shows substantial earthwork throughout plaintiffs Construction Area although
plaintiff points out that said photograph demonstrates earthwork throughout the
entire Park property. NGSC 56.1 Stmt. ~ 53; PIt. 56.1 Ctr. Stmt. ~ 53.
Defendants state that plaintiff dumped at least 7,500 cubic yards of fill
material on the Park Property and that there is no indication that any of the fill
material was tested for environmental contaminants beforehand. NGSC 56.1
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Stmt. ~~ 54,55. Plaintiff submits that an August 1963 document entitled "Town
of Oyster Bay Clearing, Grading and Drainage for Bethpage Community Park Bid
Tabulations" states that 1,000 cubic yards of fill material was required in
connection with the construction of the Park. Also, a December 21, 1963 letter to
DeLillo Construction Company indicates that the contractor removed 6,500 cubic
yards of bank run material from the property and was required to return it.
Additionally, plaintiffs expert, Mr. Vetere testified that any fill introduced onto
the Park Property was for specific purposes, likely to have been processed washed
and as a result, there was a "very low possibility" that any fill material was
contaminated. PIt. Ctr. Stmt. ~~ 54, 55.
In addition to installing eighteen (18) in-ground leaching pools in the
northern portion of the property and one in the eastern portion of the property,
plaintiff also installed electrical transformers in the eastern portion of the
property, i. e., those areas previously described in the 1963 Engineering Report as
"virgin and undisturbed." NGSC 56.1 Stmt. ~~ 56, 57. Plaintiff contends,
however, that the transformers were owned, installed and maintained by the Long
Island Lighting company or its successors and objects to defendants use of the
term "virgin and undisturbed" to mean that the ground was untouched in light of
its claim that the phrase is an engineering term of art. PIt. Ctr. Stmt. ~~ 56, 57.
The electrical transformers installed in the eastern portion of the property as well
as the light ballasts with capacitors installed throughout the property by plaintiff
may have contained PCBs. NGSC 56.1 Stmt. ~~ 58, 59. Plaintiff disputes the
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foregoing because it did not install the two electrical transfonners located in the
basement of the ice rink building prior to 1972 and its experts testified that they
had no knowledge as to whether any of the transfonners installed prior to 1972
contained PCBs. PIt. Ctr. Stmt. ~~ 58.
Plaintiff constructed and operated an ice-skating rink on part of the area
previously described in the 1963 Engineering Report as "virgin and undisturbed"
which used Freon-22 as a refrigerant. NGSC 56.1 Stmt. ~~ 60, 61; PIt. 56.1 Ctr.
Stmt. ~ 61. The ice-skating rink suffered repeated leaks from its refrigerant
systems in the ice rink floor beneath the ice. NGSC 56.1 Stmt. ~ 63; PIt. 56.1 Ctr.
Stmt. ~ 63. In January 2007, debris, including construction debris, was located by
the town's remediation contractor that was within the footprint of the parking lot
and portions of the parking lot subsurface sat directly on top of debris. NGSC
56.1 Stmt. ~~ 64, 65, 66. Plaintiffs construction of the Bethpage Community
Park involved the excavation and grading of more than 100,000 cubic yards of
soil. If the contamination that the Town uncovered while implementing Remedial
Alternative 4 existed when NGSC donated the property to it in 1962, the Town
would have necessarily encountered at least some contamination when it
constructed the Park. NGSC 56.1 Stmt. ~~ 67, 68.
The Federal Defendants state that by letter dated March 27, 1995, James L.
Colter, Remedial Project Manager for the Navy, advised Tim Vickerson, New
York State Department of Health, that the Navy had tested the soil in and around
the Park and had detected PCBs. The Town was sent a copy of this letter. Fed.
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Def 56.1 Stmt. ~ 69. Plaintiff disputes the federal defendants' contention as
unsupported by the March 27, 1995 letter given that it only notified the Town that
one soil sample was taken from within the Park. That sample indicated that the
Park contained 0.169 mg/kg of PCBs which is below the standard of 1 mglkg for
residential use of property. PIt. 56.1 Ctr. Stmt. ~ 69.
On or about February 25,2002, plaintiff received a schedule for soil
sampling at the Park from Gannett Fleming Engineers and Architects, P.c.
("Gannett Fleming"), an engineering consulting firm retained by the Town. Fed.
Def 56.1 Stmt. ~ 70. By letter dated February 22, 2002, NGSC requested
permission from the Town to conduct a soil sampling program within the Park for
the purpose of assessing soil quality and on or about April 16, 2002, plaintiff
authorized NGSC to perform a soil investigation, which investigation took place
on March 4 through March 8, 2002. Fed. Def. 56.1 Strut. ~~ 71, 72. By
interdepartmental memorandum dated April 25, 2002, the Town provided a copy
of the results of the soil sampling program, which were prepared by NGSC's
consultants, to Town Councilwoman Bonnie Eisler. Fed. Def. 56.1 Stmt. ~ 73.
On April 30, 2002, town officials were told that elevated levels of PCBs and
metals were found in the Park. Fed. Def. 56.1 Stmt. ~ 74. By interdepartmental
memorandum dated May 2, 2002, plaintiff reviewed documentation concerning
the location of the most probable areas of PCB contamination within the
Construction Area at the Park and which discussed plaintiffs intent to cap these
areas with asphalt. Fed. Def 56.1 Stmt. ~ 75.
-24
On May 2, 2002, plaintiff closed the Park because of elevated levels of
contaminants, including PCBs. Fed. Def. 56.1 Stmt. ~ 76. By letter dated May 9,
2002, NGSC informed the DEC that "[t]here are two other directly involved
parties-the U.S. Navy as the owner of the adjacent property from which the
contaminants may have originated and the Town of Oyster Bay as the developer
of the Park into its present configuration who may have brought contaminants
from other sources." A copy of this letter was sent to the Town. Fed. Def. 56.1
Stmt. ~ 77. On that date, May 9, 2002, the town held a meeting to discuss
Bethpage Community Park, at which the town's consulting engineer,
representatives from the Nassau County Department of Health, New York State
Department of Health and the NYSDEC were present. Fed. Def. 56.1 Stmt. ~ 78.
By letter dated May 9,2002, NGSC requested the Town's permission to
conduct a limited soil sampling program within the Park as a follow-up to the
samples taken by NGSC in March 2002. Fed. Def. 56.1 Stmt. ~ 79.
By letter to the Town dated May 13, 2002, Edward P. Mangano, Nassau
County Legislator, suggested that the Town contact the U.S. Navy, NGSC,
NYSDEC and the Bethpage Water District as resources for historical data
regarding the Park. Also by letter dated May 13, 2002, Mr. Mangano requested
that the Nassau County Health Commissioner assist the Town in its investigation
of contaminants found in the Park by providing the Town with certain documents
regarding the Park as well as neighboring properties, including but not limited to
the U.S. Navy property, the former Grumman property, and the present NGSC
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property, a copy of which was sent to the Town. Fed. Def. 56.1 Stmt. ~~ 80,81.
By facsimile dated May 13, 2002, Gannett Fleming sent to plaintiff a copy of an
electronic mail message from NGSC with regard to additional Park sampling
which "needs to be worked out with the agencies and agreed to by all the involved
parties, which include the Town and the Navy." Fed. Def. 56.1 Stmt. ~ 82.
By facsimile dated May 14, 2002, the DEC sent plaintiff a draft fact sheet
concerning historical and recent testing for PCBs carried out at and around the
Park. Fed. Def. 56.1 Stmt. ~ 83. The draft fact sheet noted that the 1994 testing
of a single sample from the Park detected PCBs at concentrations less than the
applicable cleanup levels. PIt. 56.1 Ctr. Stmt. ~ 83. By interdepartmental
memorandum dated May 23,2002, plaintiff directed the recipients of said
memorandum to NGSC's May 9, 2002 letter which contained the statement
"[t]here are two other directly involved parties-the U.S. Navy as the owner of the
adjacent property from which the contaminants may have originated and the Town
of Oyster Bay as the developer of the Park into its present configuration who may
have brought contaminants from other sources." PIt. 56.1 Ctr. Stmt. ~ 84. By
facsimile dated May 24,2002, Gannett Fleming informed the Town of the
preliminary results of the PCB testing of park soil performed by NGSC's
consultants Dvirka & Bartilucci. PIt. 56.1 Ctr. Stmt. ~ 85.
On May 26,2004, federal defendants, through the Office of Judge
Advocate General of the U.S. Navy, received a notice of claim dated May 19,
2004 from the Town pursuant to the Federal Tort Claims Act which was
-26
accompanied by the Town's attorney's cover letter dated May 21,2004. Fed. Def.
56.1 Stmt. 'iI 86. By letter dated June 2, 2004, the Office of Judge Advocate
General, Department of Navy, confirmed receipt ofplaintiffs notice of claim on
May 26,2004. Fed. Def. 56.1 Stmt. 'il87.
On April 21, 2005, plaintiff filed a complaint in this action. Plaintiff filed
an amended complaint on June 14,2005 and a second amended complaint on May
22, 2006. Fed. Def. 56.1 Stmt. 'iI 88.
e. Plaintiff's Motion for Summary Judgment Against NGSC
In support of its motion for summary judgment against NGSC, the Town
argues that it has established each of the prima facie elements required to show
liability pursuant to sections 107 and 113 of the Comprehensive Environmental
Response Compensation and Liability Act, 42 U.S.c. §§ 9607 and 9613.
First, plaintiff claims that NGSC is a responsible party because it falls
within at least three of the four categories set forth in section 107(a): (1) NGSC is
liable as a "former owner" because it owned the Park property when hazardous
substances were being disposed of therein; (2) NGSC arranged for the disposal of
hazardous substances at the park and is liable as an "arranger"; and (3) NGSC is
liable as a "transporter" because it accepted hazardous substances for transport to
the Park. Accordingly, plaintiffs claim, NGSC is a "covered person" pursuant to
42 U.S.c. § 9607(a)(2),(3) and (4).
Next, plaintiff argues that the Park is a "facility" under CERCLA because
a facility is broadly defined to include "any site or area where a hazardous
-27
substance has been deposited, stored, disposed of, or placed, or otherwise come to
be located." State ofNew York v. General Electric Co., 592 F. Supp. 291, 295
(N.D.N.Y. 1984). Given that environmental assessments conducted by the Town
and NGSC show the presence of hazardous substances throughout the eighteen
(18) acre park, the Park is a facility because it is an area where hazardous
substances have come to be located.
Third, plaintiff argues that there has been a "release or threatened release"
which is defined as "any spilling, leaking, pumping, pouring, emitting, emptying,
injecting, escaping, leaching, dumping, or disposing into the environment." 42
U.S.C. § 9601(22). Since chromium, PCBs and other hazardous substances are
present in soils throughout the Park, there has been a "release" from a CERCLA
facility. Additionally, plaintiff claims, the release of these hazardous substances
have also caused the Town to incur "response costs," including costs incurred in
undertaking removal and remedial actions.
Fourth, plaintiff argues that its response costs are consistent with the
National Contingency Plan which is the last element to establish a prima facie
case for CERCLA liability under 42 U.S.C. § 9607. The Town claims that it is
well established that where a state environmental agency approves the
development of a response action and monitors its implementation, the NCP
consistency requirement is satisfied as a matter of law. Pfohl Bros. Landfill Site
Steering Comm. V. Browning-Ferris Industry ofNew York, 2004 U.S. Dist.
LEXIS 28367 at *72 (W.D.N.Y. 2004). Given that the Order on Consent
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required any clean-up activities undertaken by the Town to be incorporated in a
DEC approved Work Plan and in compliance with CERCLA, the NCP and all
applicable statutes, regulations and guidelines, the funds expended by the town,
more than $22 million dollars, in carrying out the DEC approved Work Plan are
recoverable.
Even if the DEC's oversight and approval does not automatically satisfy
the NCP consistency requirement, the plaintiff must only show that its costs are in
"substantial compliance" with the NCP to recover under CERCLA. Accordingly,
a private party's compliance should take into account: (1) appropriate site
investigation and analysis of remedial alternatives; (2) compliance with the
scoring, development, and selection criteria for removal and remedial actions; (3)
selection of a cost-effective response; and (4) opportunity for public comment.
ABB Industrial Systems, Inc. v. Prime Tech, Inc., 32 F. Supp. 2d 38, 43 (D. Conn.
1998). Plaintiff argues that whether its activities are characterized as "removal"
or "remedial" in nature, its response was in substantial compliance with the NCP
as demonstrated by H2M's numerous submissions to the DEC which were
ultimately approved and the opportunity provided by the Town for public
comment.
As a result of the foregoing, plaintiff claims that it has established a prima
facie case for CERCLA liability and is therefore entitled to summary judgment
because "[o]nce a plaintiff makes aprimafacie showing [under CERCLA], a
defendant may avoid liability only ifit establishes by a preponderance of the
-29
evidence that the release or threatened release was caused by an act of God, an act
of war, certain acts or omissions of third parties ... or a combination ofthese
reasons." B.F. Goodrich v. Betkoski, 99 F.3d 505, 514 (2d Cir. 1996).
In opposition to plaintiffs motion for summary judgment, NGSC argues
that plaintiff has acknowledged that it must prove that it substantially complied
with NCP requirements to prove a prima facie case under CERCLA, which
plaintiff cannot do because the remedy selected by plaintiff was not cost
effective. 2 Pursuant to 40 C.F.R. § 300.430(f)(1)(ii)(D), the NCP mandates that
"[e]ach remedial action selected shall be cost-effective."
NGSC also argues that plaintiffs contention that the DEC's involvement
in this case satisfied the statutory requirement to conform to the NCP is incorrect
because plaintiffs contention violates the statutory distinction between cleanup
costs incurred by the government and costs incurred by a private citizen.
Furthermore, NGSC contends that the Second Circuit has never held, as a matter
oflaw, that NYSDEC's involvement automatically fulfills a private party's
statutory requirement to prove that its action substantially complied with all
NCP's requirements, particularly the requirement that the remedial actions be
cost-effective.
Although plaintiffs failure to select a cost-effective remedy is a sufficient
basis to find that its plan did not comply with the NCP, NGSC argues, plaintiff
also failed to substantially comply with other requirements of the NCP, including
2. NGSC's position is set forth more fully, infra, in support of its motion for summary judgment.
-30
failure to consider more than one remedial alternative before selecting Remedial
Alternative 4 and failure to adequately document its costs.
Moreover, even if plaintiff had adequately documented its costs, it must
also prove that the costs were "necessary costs" under CERCLA and plaintiff has
not and cannot meet its burden of showing that the costs it incurred in carrying out
Remedial Alternative 4 were necessary because the DEC advised plaintiff that its
remedial efforts were above and beyond what the DEC would require.
NGSC further argues that it is not a potentially responsible party under
CERCLA for the purposes ofplaintiffs CERCLA claim. First, defendant claims
that the relevant "facility" for purposes of plaintiff s CERCLA claim is the site
defined in plaintiffs Consent Order with the DEC, i,e., the location within the
Park where plaintiff intends to construct the new ice rink which meets the
statutory definition for a "facility" under CERCLA because it is an area where
hazardous substances have come to be located. Plaintiff contends, however, that
the entire Park Property is the relevant "facility" for its cost-recovery action
because hazardous substances are present throughout the 18-acre Park.
NGSC also argues that even if the entire Park Property were the relevant
facility for the plaintiff's response action, it does not mean that NGSC should be
held jointly and severally liable for contamination in the area where plaintiff has
the ice rink, and which area was used exclusively by plaintiff, since that area was
described by plaintiffs consulting engineering firm (H2M) as "virgin and
undisturbed" in 1963 after NGSC donated the property to plaintiff.
-31-
Furthennore, NGSC contends that plaintiff has failed to prove that it is a
potentially responsible party under the relevant sections of CERCLA because
plaintiff does not contend that NGSC arranged for disposal of a hazardous
substance at a facility "owned or operated by another party or entity" at the time of
the disposal. 42 U.S.C. § 9607(3). Nor may plaintiff claim that NGSC falls
within 42 U.S.C. § 9607(a)(4) because that section applies only to a party "who
accepts or accepted" hazardous substances for transport.
NGSC also adopts the federal defendants' argument in support of their
motion to dismiss plaintiffs § 107(a) claim in its second amended complaint, i.e.,
that pursuant to the United States Supreme Court's decision in United States v.
Atlantic Research Corp., 551 U.S. 128, 127 S. Ct. 2331 (2007), the only provision
under which the Town may potentially recover costs is § 113(f) of CERCLA
(claim for contribution) and not § 107(a)(4)(B) (cost-recovery action only)
because plaintiff, as owner of the property since 1962, is a potentially responsible
party (PRP). In Atlantic Research Corp., the Court affinned the Court of Appeals
for the Eighth Circuit in holding that "PRPs that 'have been subject to §§ 106 or
107 enforcement actions are still required to use § 113, thereby ensuring its
continued vitality.' " 127 S. Ct. at 2335 (quoting Atlantic Research Corp. v.
United States, 459 F.3d 827,836-37 (8th Cir. 2006)). Given that the Town has a
cause of action pursuant to § 113(f)(3)(B), NGSC and the federal defendants
argue, the Supreme Court would not allow it to sue other PRPs under § 107(a)
and, as a result, plaintiffs § 107 CERCLA claim should be dismissed.
-32-
D. Defendant NGSC's Motion for Summary Judgment Against the Town

of Oyster Bay
In support of its motion for summary judgment against plaintiff, NGSC
argues that plaintiff may not prevail under CERCLA because the remedial plan
implemented by plaintiff is not cost effective and is, therefore, inconsistent with
the National Contingency Plan, which establishes requirements for site clean-up
and cost recovery. As a result, NGSC contends, plaintiff may not establish a
prima facie cause of action pursuant to CERCLA because the statute requires a
plaintiff to establish that its costs and responses conform to the NCP.
As set forth above, the DEC commented on plaintiffs remedial plan by
letter dated February 10,2006 wherein it advised plaintiff that the magnitude of
work and level of effort proposed by plaintiff exceeded what the DEC would
require. The DEC also advised plaintiff to evaluate additional remedial
alternatives to ensure selection of a "cost-effective remedy." Furthermore, the
DEC noted that plaintiff had failed to submit cost estimates with its remedial plan.
Given the foregoing and because plaintiffs cost estimates to the DEC for
Remedial Alternative 4 were projected to cost three times more than an alternative
which the DEC determined was fully protective of human health and the
environment, i.e., Remedial Alternative 2, NGSC contends that plaintiff may not
sustain its burden in demonstrating that the remedial action was consistent with
the NCP.
NGSC also argues that plaintiff may not prevail because it cannot
demonstrate that defendant falls within any of the categories of "covered persons"
-33-
who are potentially liable under CERCLA given that plaintiffs consulting
engineering firm, H2M, observed that much of the Construction Area consisted of
"undisturbed virgin ground" as late as 1963, after NGSC donated the Park
Property. Furthermore, plaintiffs expert, Mr. Vetere, could only speculate as to
the sources of contamination located in plaintiffs site.
In addition, NGSC contends that contemporaneous documents
demonstrate that soon after taking title to the property, plaintiff dumped at least
7,500 cubic yards of fill material on the Park Property which was not, most likely,
tested for contaminants; that plaintiff installed 18 in-ground leeching pools and
transformers and light ballasts which likely contained PCBs; and that plaintiff
constructed an ice skating rink in the formerly "virgin and undisturbed" eastern
portion of the property which leaked repeatedly. Furthermore, construction debris
was recently found buried within the footprint of the parking lot that plaintiff
installed in the central portion of the property when it constructed the Park and the
lot's subsurface sat directly on top of that debris. Given the foregoing and
plaintiffs expert's mere speculation with regard to the source of the
contamination, NGSC argues that plaintiff will not be able to sustain its burden of
proving that the disposal occurred during NGSC's ownership.
In opposition to NGSC's motion for summary judgment, the Town argues
that NGSC had thirty (30) days to institute a proceeding under Article 78 of New
York's Civil Practice Law and Rules to challenge the DEC's approval of the
-34-
Town's selection of Remedial Alternative 4. 3 Since NGSC did not institute such a
proceeding, the Town claims defendant may not now lodge a collateral attack on
the DEC's approval. Furthermore, the Town contends that NGSC did not bring
such a proceeding because it knew it could not show that the DEC's approval of
the Town's choice was arbitrary and capricious and without any rational basis.
The Town also claims in choosing Remedial Alternative 4 over Remedial
Alternative 2, it properly followed DEC regulations and considered the nature and
activities which occur or may occur on the property, including those which may
occur at the subsurface to a depth of fifteen (15) feet below surface, which
Remedial Alternative 2 would not have addressed. Additionally, DEC regulations
expressly employ the goal of restoring a site to its pre-contamination condition
and authorize the DEC to "approve a remedial program for soil that ... (iii)
achieves a cleanup which is more stringent than the current, intended and
reasonably anticipated future land uses of the site and its surroundings." 6
NYCRR § 375-2.8(c)(3)(iii). Given that the DEC approved plaintiffs choice of
remedial plan, NGSC should have challenged the DEC's decision by bringing an
Article 78 proceeding.
Additionally, plaintiff opposes NGSC's motion on the basis that its
remedial choice comports with the NCP's cost effective requirement. Plaintiff
contends that it is only after the overall effectiveness of a remedy is determined
3. This argwnent will not be addressed by the Court in light ofNGSC's response that it is not
challenging the DEC's decision to allow plaintiff to "spend its own money implementing an
excessively expensive remedy on its own property," with which the Court concurs.
-35-
that costs are considered in evaluating whether a remedy is cost-effective.
Moreover, the Environmental Protection Agency's statements in the preamble to
the 1990 NCP revisions on the subject of cost effectiveness determinations state
that "special emphasis is to be afforded alternatives that offer advantages in terms
oflong-term effectiveness and permanence." 55 Fed. Reg. 8795. The preamble
also stated that "[t]he statutory finding of cost-effectiveness is not 'balanced' with
any other statutory requirement, but rather certain evaluation criteria are balanced
to reach the conclusion that the remedy is cost-effective. More than one remedy
can be cost-effective." Id.
Plaintiff claims that it is obvious that Remedial Alternative 4 achieves
state and federal goals in remedying the effects of hazardous substances while
Remedial Alternative 2 does not because pursuant to New York law, "the goal of
the remedial program for a specific site is to restore that site to pre-disposal
conditions." 6 NYCRR § 375-2.8(a). As a result, when the effectiveness of
Remedial Alternative 4 is compared to the costs of implementing it, it is clear that
the remedy is cost-effective because it ensures that no further dangers from
contaminated soils will threaten the town's citizens and workers in the course of
future activities. On the other hand, the DEC would have to revisit the site every
five years if Remedial Alternative 2 were implemented.
Plaintiff also argues that even if a question of fact exists as to whether
Remedial Alternative 4 was cost effective, the Town has substantially complied
with the NCP and thus, plaintiff's actions should be deemed consistent with the
-36-
NCP when evaluated as a whole.
Furthermore, plaintiff argues that NGSC's claim that it did not dispose of
hazardous substances within the Construction Area is irrelevant because the entire
eighteen (18) acre park constitutes a "facility" under CERCLA's broad definition.
Therefore, NGSC's argument that the Town cannot prove that NGSC is
responsible for the presence of hazardous substances within plaintiffs
Construction Area ignores the broad scope of CERCLA, which imposes strict
liability upon certain categories of parties for contamination at a "facility." In any
event, plaintiff contends that its expert, Mr. Vetere, found ample evidence to
demonstrate that NGSC's waste disposal activities extended into many areas of
the Park Property, including the Construction Area.
E. Plaintiff's Motion for Summary Judgment Against the Federal

Defendants
In support of its motion for summary judgment against the federal
defendants, plaintiff argues that the Navy is a responsible party and a covered
person pursuant to section 107(a)(3) of CERCLA because it "arranged" for the
disposal of hazardous substances in the Park. In order to find that the Navy is a
"covered person," it need only demonstrate that the Navy: (1) owned or possessed
a hazardous substance; and (2) arranged for either: (i) disposal or (ii) treatment of
said substance.
Plaintiff contends that the aforesaid Facilities Use Contracts demonstrate
that the waste generated by NGSC's operations was "owned" by the Navy given
the contracts' use of the word "Material" which was defined as "property ...
-37-
which may be consumed or expended in the performance of such contracts or
subcontracts." Additionally, the contracts describe the term "Facilities" as "all
Government-owned property, other than (i) Material." Thus, plaintiff argues,
waste generated as a result of performance of the Navy munitions contracts is
"Material" and given that "Material" is Navy-owned property, it follows that such
waste, which contains trivalent chromium and PCBs, is owned by the Navy.
Furthermore, plaintiff argues that even NGSC has acknowledged that any
waste dumped in the sludge drying beds in the Park "would have been produced
from Government owned materials" in correspondence addressed to the DEC in
July 2002. As a result, plaintiff contends, the Navy falls within the definition of
an "arranger" because whomever owns or possesses a hazardous substance is
obligated to exercise control over that substance pursuant to Second Circuit law.
This is particularly so when the supplier of the raw materials is also the owner of
the by-product of the manufacturing process.
As to the second prong of arranger liability, plaintiff argues that the Navy
arranged for the disposal of the hazardous substances based on the provisions of
the facilities use contracts including an arrangement with NGSC to produce at
least 75% of its output for the benefit of the Navy and to dispose ofNavy owned
wastes while utilizing Navy owned buildings and equipment. Accordingly,
plaintiff contends that the Navy is liable because it "by contract, agreement or
otherwise arranged [with NGSC] for [the] disposal or treatment ... at any facility
... owned or operated by another party or entity. . . containing such hazardous
-38-
substances." 42 U.S.c. § 9607(a)(3).
Plaintiff also contends that pursuant to the Facilities Use contract, the
wastewater treatment facility could not have been constructed at Plant 2 without
the express authorization of the Navy given that the contract required NGSC to
obtain the Navy's approval for additions and alterations to Plant 2's structures.
Additionally, because the Navy financed alterations to the structure of Plant 2, the
Navy paid for the wastewater treatment plant.
Plaintiff further argues that since 42 U.S.c. § 9601(21) defines the term
"person" as an individual, firm, corporation, association, partnership, consortium,
joint venture, commercial entity, United States Government, State, municipality,
commission, political subdivision of a state, or any interstate body, the United
States and its various departments are covered persons under the Act.
In opposition to plaintiffs motion, the federal defendants incorporate by
reference defendant NGSC's arguments in support of its motion for summary
judgment, set forth above herein, to the extent that the contemporaneous
documentation as well as plaintiffs own expert's testimony demonstrate that
plaintiffs Construction Area consisted of primarily "undisturbed virgin ground."4
The federal defendants also argue that plaintiff s reliance upon the
Facilities Use contract from 1943 to establish that the Navy owned the property
and arranged for the disposal of waste is misplaced because said contract was
4. The federal defendants also incorporate by reference their arguments in support of their
summary judgment motion, set forth herein, including plaintiffs failure to comply with the NCP in
selecting a cost effective remedy.
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inapplicable during the relevant time period due to the fact that the Navy sold and
transferred to NGSC title to Plants 1,2 and 4, including the buildings thereon, on
December 18,1947. As a result, the 1943 contract would have terminated and its
terms would be inapplicable to Plant 2 after the sale date.
Furthermore, federal defendants argue that plaintiff inaccurately asserts
that the Facility Use contracts "governed the operation and maintenance of
Northrop Grumman's aircraft testing and manufacturing operations on the
Grumman site and NWIRP." Defendants also contend that plaintiffs belief that
based on the Facilities Use contracts, the Navy owned the waste resulting from
NGSC's aircraft manufacturing and testing operations is likewise incorrect. In
fact, the Facilities Use contracts only applied to the use of Navy-owned property
and not Grumman-owned property and those contracts differed from the
production, research and development contracts, which governed NGSC's
operations. In general, according to the federal defendants, the Facility Use
contract allows a contractor to use facilities to perform its obligations under the
research and development contracts; these contracts generally govern the United
States' title to raw materials.
The federal defendants also argue that plaintiff misconstrues the
"Facilities" and "Material" definitions of the Facilities Use contracts and contend
that the definition merely states that "Facilities" means all government-owned
property, other than Material and Special Tooling, provided to the contractor.
Federal defendants claim that the definition excludes "Material" and plaintiffs
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reading of the contract is contrary to the Federal Acquisition Regulations,
predecessor regulations and federal govemment contracts case law in that it fails
to distinguish between contractor-owned, contractor-acquired and govemment-
furnished property. As a result, plaintiff cannot demonstrate that the Navy was an
"arranger" for the disposal of hazardous wastes based upon the proof submitted
and, therefore, may not prevail on its motion.
Furthennore, federal defendants argue that plaintiff has not proffered any
competent evidence to demonstrate that the Navy was obligated to arrange for the
disposal or treatment of the allegedly hazardous waste created by NGSC's
manufacturing activities. As aforesaid, the Facilities Use contracts specifically
excluded materials and wastes; nor is it clear that the Maintenance Clause covered
waste management activities at all. Plaintiff may not, therefore, credibly contend
that the Navy arranged for disposal under that clause either.
With regard to plaintiffs contention that the Navy paid for the wastewater
treatment facility located at Plant 2, defendants argue that in the first instance, the
allegation regarding the treatment facility is not a material fact because that
portion of the Park does not concern property which is the subject ofthe
plaintiff's consent order with the DEC. Additionally, plaintiff has not, despite
extensive discovery, supplied any competent evidence that the Navy financed or
approved the Plant 2 treatment facility which was constructed by Grumman's
predecessor. Given the foregoing, defendants contend, plaintiff has insufficient
evidence to demonstrate that the federal defendants were "arrangers" within the
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meaning of 42 U.S.C. § 9607(a)(3) and its motion for summary judgment should
be denied.
Furthermore, federal defendants claim that plaintiff has failed to meet its
burden in establishing that the remedial alternative selected was consistent with
the National Contingency Plan in at least four ways.s First, plaintiff chose an
unnecessarily expensive remedial alternative; second, plaintiff failed to consider
more than one remedial alternative prior to selecting Remedial Alternative 4;
third, plaintiff failed to comply with the NCP' s requirement that it reconsider its
selection of remedial alternative after the public comment period; and fourth,
plaintiff filed to comply with the NCP's cost documentation requirement. As a
result of the foregoing, federal defendants argue that plaintiffs motion for
summary judgment should be denied.
F. Federal Defendants' Motion for Summary Judgment Against Plaintiff
In support of their motion for summary judgment, the federal defendants
argue that the Town may only pursue cost recovery under § 113(f) of CERCLA
and not pursuant to § 107 because such a finding is consistent with the United
States Supreme Court's decision in United States v. Atlantic Research Corp., 551
U.S. 128, 127 S. Ct. 2331 (2007). In Atlantic Research, the company had neither
been sued under §§ 106 or 107 as required by § 113(f)(1) or entered into a
settlement in accordance with § 113(f)(3)(B) and, as a result, had no cause of
5. The federal defendants arguments with regard to plaintiff's compliance with the NCP are set
forth infra. The federal defendants also adopt NGSC's arguments, supra, with regard to plaintiff's
compliance with the NCP.
-42-
action pursuant to § 113(f). The issue was whether a potentially responsible party
may recover cost responses under § 107.
The Eight Circuit Court of Appeals had held that a liable party who has
incurred a necessary cost response but who has been neither sued nor settled their
liability (as required to bring an action under § 113(f)) may bring an action
pursuant to § 107. The Supreme Court affirmed the Eight Circuit in holding that a
PRP may recover its costs from other PRPs under § 107. However, federal
defendants argue, the Court did not hold that all PRPs may utilize § 107 because
to do so would render § 113(f) meaningless.
In this case where it is undisputed that plaintiff, as owner and operator of
the Park since 1962, is a potentially responsible party pursuant to § 107(a)(1 ),
allowing it to seek to recover its costs under § 107 would render § 113(f)
meaningless because the Town's cleanup actions resulted from an administrative
settlement with the DEC and, therefore, fall within § 113. Thus, federal
defendants argue, the Supreme Court's holding in Atlantic Research indicates that
it would require PRPs who have a cause of action for contribution under § Il3(f)
to use that section instead of seeking cost recovery pursuant to § 107 of CERCLA.
Accordingly, defendants claim that the Town's § 107 claim should be dismissed.
Federal defendants also argue that plaintiff has failed to comply with the
NCP in that plaintiffs choice of remedial alternative was not cost effective. In
order to recover response costs, a private party must be in "substantial
compliance" with the provisions set forth in 40 C.F.R. §§ 300.700(c)(3)-(7).
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Defendants contend that plaintiff is not in compliance with subsection (c)(7),
which requires that a remedy be "cost-effective," because plaintiff chose an
"unnecessarily expensive remedy" to clean up its Construction Area despite the
fact that the DEC and plaintiffs engineer confirmed that Remedial Alternative 2
(projected to cost $6 million) would be fully protective of human health and the
environment. 6
Federal defendants also argue that their request for summary judgment
should be granted on the ground that there is no evidence that they are potentially
responsible persons for the contamination in plaintiffs Construction Area. In
order to recover under CERCLA, plaintiff is required to demonstrate that
defendants fall within at least one of four categories of PRPs. Plaintiffs
complaint alleges that the federal defendants are PRPs because they were past
owners of the Construction Area at the time of the disposal of the hazardous
wastes; that they were past operators at the time of the disposal; and that federal
defendants were persons who arranged for the disposal or treatment of hazardous
substances in plaintiffs Construction Area.
Federal defendants argue, however, that there is no evidence that they ever
owned any land on the Park Property and, as a result, they cannot be held liable as
owners at the time of disposal.
Federal defendants also contend that plaintiff lacks evidence to support its
6. The federal defendants also adopt NGSC's arguments, supra, with regard to
plaintiffs compliance with the NCP's requirement that remedial plans be cost-effective.
-44-
claim that defendants formerly "operated" the property within the meaning of 42
U.S.c. § 9607(a)(2) because pursuant to Supreme Court case law, operator
liability may only be sustained against a party that directs, manages or conducts
the specific operations at a facility which give rise to contamination. Defendants
argue that since the plaintiff cannot establish the disposal of hazardous substances
during the alleged period of operation, let alone any indicia of operation by the
Navy, it has failed to meet its burden of establishing that defendants were
"operators" under CERCLA.
Federal defendants also argue that they are not liable as "arrangers" for the
reasons set forth in the previous section. Given that they do not fall within any of
the categories of covered persons under CERCLA, federal defendants contend that
they are entitled to summary judgment on this ground as well.
In opposition to federal defendants' motion for summary judgment,
plaintiff argues, and federal defendants concede, that the Supreme Court held in
Atlantic Research, supra, that PRPs who incur clean-up costs qualify as "any
other person" for the purposes of a § 107 cause of action. Thus, the Town, as a
landowner whose land has been contaminated by another, may maintain an action
under § 107(a)(4)(B) ofCERCLA.
Additionally, given that the Town did not enter into a consent decree
following a civil suit under a § 106 or 107(a) action, this Court previously
concluded, in granting defendant NGSC's previous motion to dismiss, that the
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Town could not maintain an action under § 113(£)(1).7 Rather, the Town
voluntarily entered into a consent decree with the DEC, conducted the clean-up of
the Construction Area and incurred response costs, spending in excess of $22
million. Under these circumstances, then, plaintiff contends that the decision in
Atlantic Research allows plaintiff to seek cost recovery, as distinct from
contribution, under § 107 of CERCLA.
Plaintiff further notes that it is also entitled to seek contribution pursuant
to § 113(£)(3) for oversight costs for which the Town reimbursed the DEC
because the Atlantic Research Court also held that reimbursement costs resulting
from a legal judgment or settlement are recoverable only under § 113(£). Federal
defendants' attempts to "shoehorn" the Town's claims for cost recovery into a
claim for contribution, however, should be rejected.
The Town also argues that it has established each element of CERCLA
against the federal defendants, including their status as an arranger, as a matter of
law in its motion for summary judgment and as a result, it is entitled to recover
the costs incurred in remediating the Park. Accordingly, the Town requests that
federal defendants' motion to dismiss andlor for summary judgment be denied.
II. DISCUSSION
NGSC's and the federal defendants' motions for summary judgment
against plaintiff are granted due to plaintiffs failure to substantially comply with
7. See Town of Oyster Bay v. Northrup Grumman Corporation, No. 05-CV-1945, at 14 (E.D.N.Y.
May 2, 2006).
-46-
the NCP's requirements that a private party select a cost-effective remedy,
evaluate alternative remedies, reevaluate alternative remedies after the public
comment period has ended and for plaintiffs failure to adequately document its
costs and demonstrate that said costs were necessary. Plaintiffs motions for
summary judgment against NGSC and the federal defendants are denied for
failure to establish a prima facie case by demonstrating that it substantially
complied with the NCP's cost-effectiveness requirement, that it failed to evaluate
alternative remedies both before and after the public comment period and for
failure to document its costs and demonstrate that same were necessary.
A. Standard for Summary Judgment
A motion for summary judgment may not be granted unless the court
determines that there is "no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter oflaw." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986) (quoting Federal Rule of Civil Procedure 56(c)).
"Summary judgment may be granted if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact that the moving party is
entitled to judgment as a matter oflaw." Williams v. R.N Donnelly Corp., 368
F.3d 123 (2d Cir. 2004). The court must resolve all ambiguities and draw all
inferences in favor of the non-moving party. Id. at 255; Castle Rock
Entertainment, Inc. v. Carol Publishing Group, 150 F.3d 132, 137 (2d Cir. 1998).
"A party opposing a properly brought motion for summary judgment bears the
-47-
burden of going beyond the [specific] pleadings, and 'designating specific facts
showing that there is a genuine issue for tria1.' " Amnesty America v. Town oj
West Hartford, 288 F.3d 467, 470 (2d Cir. 2002) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986)). If there is any evidence in the record from
which a reasonable inference may be drawn in favor of the non-moving party on a
material issue of fact, summary judgment is improper. Chambers v. TRM Copy
Centers Corp., 43 F.3d 29,37 (2d Cir. 1994). "[T]hejudge's role in reviewing a
motion for summary judgment is not to weigh the evidence and determine the
truth of the matter but to determine whether there is a genuine issue for tria1."
Anderson, 477 U.S. at 249. "[T]here is no issue for trial unless there is sufficient
evidence favoring the nonmoving party for a jury to return a verdict for that
party." Id.
B. CERCLA's Statutory Scheme
CERCLA is a "broad, remedial statute enacted by Congress in order to
enable the Environmental Protection Agency ... to respond quickly and
effectively to hazardous waste spills that threaten the environment" and to ensure
that those responsible for hazardous waste pollution fund the clean-up of their
activities. General Electric Co. v. AAMCO Transmissions, Inc., 962 F.2d 281,
285 (2d Cir. 1992). Aprimajacie case for cost recovery pursuant to § 107 or for
contribution pursuant to § 1l3(f) (see 42 U.S.C. § 96l3(f)) ofCERCLA requires a
plaintiff to demonstrate that:
(1) the defendant is a responsible party as defined by section

9607(a)(I)-(4); (2) that the site at issue is a "facility" as defined by
-48-
section 9601(9); (3) that there has been a release of hazardous

substances at the facility or that such release is threatened; (4) that
the plaintiff has incurred response costs in connection with that
release; and that (5) the costs incurred and the response actions
taken conform to the National Contingency Plan set up under
CERCLA.
General Electric Co., 962 F.2d at 285 (citing B.P. Goodrich Co. v. Murtha, 958
F.2d 1192, 1198 (2d Cir. 1992».8
CERCLA creates four classes of potentially responsible persons:
(l) present owners and operators of a facility; (2) past owners and operators of a
facility; (3) any person who arranges for disposal or treatment of hazardous
substances; and (4) any person who accepts or accepted hazardous substances for
transport which results in a release or threatened release of such substances. 42
u.S.C. § 9607(a)(I)-(4). See Murtha, 958 F.2d at 1198.
Additionally, to recover under CERCLA, remedial actions must be
consistent with the National Contingency Plan, a compilation of federal
regulations promulgated by the Environmental Protection Agency, which direct
that "[a] private party response action will be considered 'consistent with the
NCP' if the action, when evaluated as a whole, is in substantial compliance with
the applicable requirements in paragraphs (5) and (6) of this section, and results in
a CERCLA-quality cleanup." 40 C.F.R. § 300.700(c)(3)(i). See United States v.
Alcan Aluminum Corp., 990 F.2d 711, 720 (2d Cir. 1993); Murtha, 958 F.2d at
8. The analysis of a claim for cost recovery pursuant to § 107 or for contribution pursuant to § 113
is identical. See Bedford Affiliates v. Sills, 156 F.3d 416,427 (2d Cir. 1998) ("The elements of an
action under § 113(£)(1) are the same as those under § 107(a).").
-49-
1198.
Furthennore, pursuant to 42 U.S.C. § 9605(a)(7), the NCP shall, inter alia,
include "means of assuring that remedial action measures are cost-effective." As
a result, compliance with the NCP requires that:
Each remedial action selected shall be cost-effective, provided that

it first satisfies the threshold criteria set forth in § 300.430
(f)(1)(ii)(A) and (B). Cost-effectiveness is detennined by
evaluating the following three of the five balancing criteria noted
in § 300.430(f)(l)(i)(B) to detennine overall effectiveness:
long-tenn effectiveness and pennanence, reduction oftoxicity,
mobility, or volume through treatment, and short-tenn
effectiveness. Overall effectiveness is then compared to cost to
ensure that the remedy is cost-effective. A remedy shall be
cost-effective if its costs are proportional to its overall
effectiveness.
40 C.F.R. § 300.430(f)(l)(ii)(D).
The NCP also requires that a remedial investigation/feasibility study be
perfonned to "assess site conditions and evaluate alternatives to the extent
necessary to select a remedy." 40 C.F.R. § 300.430(a)(2). Consequently, a
CERCLA-quality cleanup consists of a remedial investigation "to collect data
necessary to adequately characterize the site for the purpose of developing and
evaluating effective remedial alternatives"; and a feasibility study "to ensure that
appropriate remedial alternatives are developed and evaluated such that relevant
infonnation concerning the remedial action options can be presented to a
decision-maker and an appropriate remedy selected." [d. at § 300.430(d)-(e).
Furthennore, the NCP proposes that after a preferred remedial alternative
is identified, it be presented for public comment. After the public comment
-50-
period ends, the comments are to be reviewed to determine if the selected
remedial alternative remains the most viable remedial action for the site in light of
the public's response. !d. at § 300.430(f)(4)(i).
In addition, the NCP requires that "[d]uring all phases of response, the
lead agency shall complete and maintain documentation to support all actions
taken under the NCP and to form the basis for cost recovery. In general,
documentation shall be sufficient to provide ... accurate accounting of ... private
party costs incurred for response actions." 40 C.F.R. § 300.l60(a)(l).
C. Plaintiff's CERCLA Claims
1. Plaintiff's Construction Area is a Facility
Pursuant to 42 U.S.C. § 9601(9)(B), a facility is defined as "any site or
area where a hazardous substance has been deposited, stored, disposed of, or
placed, or otherwise come to be located." "In order to show that an area is a
'facility,' the plaintiff need only show that a hazardous substance, as defined by
CERCLA, has been placed there or has 'otherwise come to be located' there."
United States v. Conservation Chemical Co., 619 F. Supp. 162, 185 (w.n. Mo.
1985).
Plaintiff contends that the entire eighteen (18) acre Park constitutes a
"facility" under CERCLA because it is a place where hazardous substances have
"come to be located." For the purposes of this case, however, the Court need not
decide whether the entire Park constitutes a facility because plaintiff seeks cost
recovery or contribution only for remediation of the seven (7) acre Construction
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Area as defined in its Consent Order with the DEC, which area is unequivocally a
"facility" as defined by 42 U.S.c. § 9601(9)(B).
2. Plaintiff's Compliance with the NCP as a Matter of Law
Plaintiff urges that its remedial action was consistent with the NCP as a
matter oflaw based on the DEC's involvement with the remediation, including
the DEC's approval and monitored implementation ofplaintiffs selected remedial
action. In support of its contention, plaintiff cites various cases which hold that
the NCP consistency requirement is satisfied as a matter of law when a state
environmental agency is involved with the development of a response action.
The majority of the cases cited by plaintiff, however, held that the
remedial action was consistent with the NCP despite the fact that plaintiff had not
sought public comment or participation. See e.g., Bedford Affiliates v. Sills, 156
F.3d 416, 428 (2d Cir. 1998) (holding that the NCP does not mandate public
participation and that "significant state involvement serves the identical purpose
that the public notice provision seeks to effectuate"); Benderson Development
Co., Inc. v. Neumade Products Corp., 2005 WL 1397013 at *14 (W.D.N.Y. June
13, 2005) (finding the DEC's involvement in this case sufficiently similar to the
DEC's involvement in Bedford Affiliates so as to satisfy the public participation
guideline); Bello v. Barden Corp., 180 F. Supp.2d 300,309 (D. Conn. 2002)
(holding that the public participation requirement may be satisfied by
demonstrating that the remedial action was taken with the involvement of the
-52-
Environmental Protection Agency or a comparable state agency).9
Pursuant to 40 C.F.R. § 300.700(c)(6), "[p]rivate parties undertaking
response actions should provide an opportunity for public comment concerning
the selection of the response action based on the provisions set out below." Given
the section's use of the word "should" as opposed to "shall" as well as the
reasoning ofthe Bedford Affiliates Court, i.e., that the "1990 revisions to the
National Plan suggest that significant state involvement serves the identical
purpose that the public notice provision seeks to effectuate," 156 F.3d at 428, the
cases cited by plaintiff are not dispositive of whether plaintiffs remedial action
was consistent with the NCP as a matter oflaw.
Plaintiff also cites NutraSweet Co. v. X-L Engineering Co., 227 F.3d 776,
791 (7th Cir. 2000), which held that plaintiffs remedial action was consistent
with the NCP based on undisputed evidence that the costs incurred in remediating
the site were done with the DEC's approval. Likewise, in Pfohl Brothers Landfill
Site Steering Committee v. Browning-Ferris Industries ofNew York, Inc., 2004
WL 941816 (W.D.N.Y. January 30, 2004), the Court held that remediation was
consistent with the NCP where there was undisputed evidence that the DEC
approved the clean-up costs. Id. at *23. In this case, however, the costs incurred
by plaintiff in carrying out its remedial plan and its compliance with the NCP are
unequivocally disputed. Consequently, plaintiffs reliance on the aforesaid cases
9. But see Union Pacific Railroad Co. v. Reilly Industries, Inc., 981 F. Supp. 1229, 1236 (D.
Minn. 1997) ("Courts have 'consistently held that failure to provide public comment opportunity
renders remedial action inconsistent with the NCP and bars recovery of costs.' ") (internal citations
omitted).
-53-
is misplaced because none of the cases demonstrate a finding of consistency with
the NCP under the facts of the instant case, i.e., plaintiffs choice of a remedial
alternative costing in excess of $22 million as opposed to a remediation plan,
deemed acceptable by the DEC, at a cost of $6 million. Moreover, 40 C.F.R. §
300.430(£)(1 )(ii)(D) provides that "[e]ach remedial action selected shall be
cost-effective ...." (emphasis added).
In addition and as set forth in greater detail herein, it cannot be said that
the DEC wholeheartedly endorsed plaintiffs selection of Remedial Alternative 4.
Accordingly, the DEC's involvement in this case does not demonstrate that
plaintiffs actions were consistent with the NCP as a matter oflaw.
3. CERCLA's Cost Effective Requirement
In order to recover pursuant to CERCLA, plaintiff must prove, inter alia,
that its Remedial Alternative 4 was consistent with the NCP, which necessarily
requires that said alternative be "cost effective." See Amland Properties Corp. v.
Aluminum Co. ofAmerica, 711 F. Supp. 784, 794 (D. N.J. 1989) ("[the] weight of
recent authority ... of private party recovery actions holds that response costs
incurred consistent with the NCP is an element of a CERCLA plaintiffs case on
liability");Artesian Water Co. v. Government ofNew Castle County, 659 F. Supp.
1269, 1291 (D. Del. 1987) (noting that [s]ection 105 ofCERCLA provides that
the NCP shall include "means of assuring that remedial action measures are cost-
effective over the period of potential exposure to the hazardous substances or
contaminated materials" [42 U.S.C. § 9605(7)]). For the following reasons, the
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Court finds that plaintiff's selection of Remedial Alternative 4 was not cost
effective and, consequently, not consistent with the NCP.
In response to plaintiffs submission to the DEC of an Investigation Report
and Remedial Action Plan dated November 2005 which was prepared by
plaintiffs engineering consulting agency H2M and which called for excavation of
soil to a depth of ten (l0) feet throughout much ofthe Construction Area, the
DEC, by correspondence dated February 10, 2006, recommended that the Town
amend its remediation plan to include additional remedial alternatives. The DEC
also commented that the "magnitude of work and the level of effort" was "very
extensive and well beyond what the NYSDEC would normally require."
Furthermore, the DEC's correspondence stated that in light of the
proposed use of the site, it would not "require removal of sub-surface soil that
marginally exceeds the soil cleanup levels" and that "most surface soil (0 to 2
feet)" could remain "in place with no further action with respect to PCBs." The
DEC's letter also advised plaintiff to evaluate alternative remedies to ensure
selection of a "cost-effective remedy" and also commented that plaintiff had not
provided cost estimates for its proposed plan.
In March 2006, the Town submitted its "Addendum to the Remedial
Action Plan" which presented and evaluated five (5) remedial alternatives;
plaintiff's original remedial action was designated Remedial Alternative 4 and
plaintiff estimated that it would cost $19 million to implement. By subsequent
correspondence in May 2006 and October 2006, the DEC advised plaintiff that
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Remedial Alternative 2 was "fully protective of human health and the
environment" and "cost effective" and stated that the Town's selected remedial
plan went far beyond what the DEC would require. The DEC also stated that
although it had advised plaintiff of the foregoing, it would "approve the remedial
alternative [4]" because it is protective of human health and the environment and
because the "Town has determined to implement Remedial Alternative 4." The
DEC's letter dated October 27,2006 explicitly states that the Town, "at its own
election and being at liberty to do so ... chose to go beyond alternative 2 and
implement alternative 4."
Furthermore, it is undisputed that the "NYDEC would not have selected
Remedial Alternative 4 if it were running the remediation" and that Remedial
Alternative 2 "would protect human health and the environment." Additionally,
Remedial Alternative 2 would have fully complied with NYSDEC's requirements
(compare NGSC 56.1 Stmt. ~~ 31,32,33 with PIt. 56.1 Ctr. Stmt.~~ 31,32,33).
In addition, the DEC's senior project engineer for the Construction Area,
Steven Scharf, testified, in response to cross-examination by plaintiffs counsel,
that Remedial Alternative 2 would have been sufficient, but that the Town
implemented Remedial Alternative 4 at its own election. Mr. Scharf also testified
that there was no need to "spend all that money and effort" when the area could
simply have been restricted given that the area in question is a park. (Dep. Trans.
of Steven Scharf dated March 29,2007 at 119:15-124:2.)
Finally, plaintiffs argument, that it selected Remedial Alternative 4 to
-56-
avoid the use of "barrier technology" and institutional controls such as deed
restrictions as would have been required by Remedial Alternative 2, is unavailing.
In fact, the deed transferring title to the Town contains a restriction which
provides that title will revert back to Grumman if the premises cease to be
"publicly owned and used for highway improvement purposes or for park and/or
recreational purposes." Consequently and as the DEC advised plaintiff,
remediation ofthe soil to a depth often (10) feet was plainly excessive
considering that property's use as a park.
Given the foregoing, it is obvious that plaintiff could have selected
Remedial Alternative 2 at a cost of approximately $6 million dollars, but insisted
on utilizing Remedial Alternative 4 at a cost of approximately $22 million dollars
despite repeated suggestions by the DEC that it consider alternative remedies.
Accordingly, the Court finds that, as a matter of law, plaintiff's selection of
Remedial Alternative 4 was not cost-effective and did not substantially comply
with the NCP. Therefore, plaintiff may not recover its costs pursuant to §§ 107 or
113(f) of CERCLA.
4. Plaintiff's Compliance with other NCP Requirements
a. Consideration of Alternative Remedies
The NCP also requires private parties to evaluate alternatives prior
to selecting a remedy. 40 C.F.R.§ 300.430(d)-(e). Failure to consider other
remedies is inconsistent with the NCP. See Sealy Connecticut, Inc. v. Litton
Industries, Inc., 93 F. Supp. 2d 177, 183 (D. Conn. 2000) (noting that CERCLA
-57-
requires a plaintiff to screen remediation alternatives based on their effectiveness,
implementability and cost); United States v. A & N Cleaners and Launderers.
Inc., 854 F. Supp. 229,232 n.2 (S.D.N.Y. 1994) ("A party responsible for
cleaning up a contaminated site is required by various provisions of CERCLA to
arrange to have an RIfFS performed, which evaluates the extent of the
contamination problem and evaluates alternative proposed remedies at the site.").
If a plaintiff was not required to meaningfully evaluate alternative
remedies to ensure that they are protective of human health and the environment,
as well as cost effective, this provision of CERCLA would be pointless. The
undisputed facts in this case demonstrate that plaintiff selected Remedial
Alternative 4 without considering alternative remedies. First, the only remedy
contained in plaintiffs November 2005 submission to the DEC is what came to be
known as Remedial Alternative 4. As plaintiffs Rule 30(b)(6) designee and chief
project engineer Matthew Russo testified, plaintiff submitted alternative remedies
only after the DEC directed it to do so. Mr. Russo also testified that the idea of
implementing an alternative remedy came up "once or twice" but that the Town's
goal all along was to implement Remedial Alternative 4.
Furthermore, the Rule 30(b)(6) designee for plaintiff s engineering
consulting firm, H2M, admitted that it did not reconsider its recommendation that
plaintiff implement alternative 4, even after receipt of the DEC's May and
October 2006 correspondence which advised plaintiff to evaluate alternative
remedies to ensure selection of a "cost-effective remedy." Instead, plaintiff opted
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to implement a remedy costing at least three times more than an alternative
remedy which the DEC indicated would be fully protective of human health and
the environment, i.e., Remedial Alternative 2, without purposeful consideration.
b. Public Comment and Evaluation of Alternative

Remedies
As set forth above, pursuant to 40 c.P.R. § 300.700(c)(6), "[p]rivate
parties undertaking response actions should provide an opportunity for public
comment concerning the selection of the response action based on the provisions
set out below." Additionally, 40 C.P.R. § 300.430(f)(4)(i) provides:
In the second and final step in the remedy selection process,

the lead agency shall reassess its initial determination that the
preferred alternative provides the best balance of trade-offs, now
factoring in any new information or points of view expressed by
the state (or support agency) and community during the public
comment period....
Plaintiff held public availability sessions on June 14,2006 and November
16,2006. PIt. Mem. in Reply to NGSC at p. 3 n.2. In light of plaintiffs
admissions, however, that it did not reconsider its strategy to implement Remedial
Alternative 4 after receiving the DEC's May and October 2006 correspondence, it
is clear that plaintiff did not, in further contravention of the NCP, "reassess its
initial determination that the preferred alternative" remained the best course of
action after the public comment period ended.
c. Documentation of Costs
The NCP requires a private party to adequately document its costs in
support ofa claim for recovery. 40 C.P.R. § 300.160(a)(l). See United States v.
-59-
E1 du Pont de Nemours & Co., 341 F. Supp. 2d 215,244 (W.D.N.Y. 2004)
("Under the NCP, Plaintiff was required to maintain documentation that 'in
general' is 'sufficient' to provide an 'accurate accounting' of the costs incurred.").
Additionally, a party may recover only those costs necessary "to address the threat
to public health or environment." Sealy Connecticut, Inc., 93 F. Supp. 2d at 187.
Plaintiff, however, has not submitted any admissible evidence of
documentation of its costs. Rather, the Town has submitted an affidavit by its
chief project engineer, Mr. Russo, which purports to account for the money spent
by plaintiff on its remediation.
Nor, as defendants point out, can plaintiff demonstrate that its costs were
"necessary" under CERCLA given that it spent millions of dollars to address risks
which did not even exist. This is particularly evident when the DEC, with regard
to plaintiffs November 2005 pollution investigation, concluded that the report
"actually provides a strong argument why most of these risks are for all reasonable
considerations, minor or even non-existent." NGSC 56.1 Stmt. ~ 15.
Furthermore, the DEC also concluded that "most surface soil (0 to 2 feet)" could
remain "in place with no further action with respect to PCBs," and that the "same
holds true for most soil samples identified with metal concentrations in the
[guidance level] range." NGSC 56.1 Stmt. ~ 14.
As a result of the foregoing, the Court finds that the Town did not
substantially comply with NCP requirements. Accordingly, plaintiffs motions for
summary judgment against defendants on its CERCLA claims must be and hereby
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are denied. NGSC and the federal defendants' motions for summary judgment
against plaintiff on its CERCLA claims are hereby granted.
D. Plaintiff's Request for a Declaratory Judgment
Plaintiff also seeks a declaratory judgment holding all defendants liable to
it for all future response costs and damages as a result of hazardous substances in
the Park. Pursuant to 42 U.S.C. § 9613(g)(2), "[i]n any such action ... [for
recovery of remedial costs], the court shall enter a declaratory judgment on
liability for response costs or damages that will be binding on any subsequent
action or actions to recover further response costs or damages." This CERCLA
provision allows for a declaratory judgment to allocate future response costs
amongst responsible parties. Gussack Realty Co. v. Xerox Corp., 224 F.3d 85, 91
(2d Cir. 2000). Where there is a finding that the plaintiff does not have
compensable expenses under CERCLA, its request for a declaratory judgment
must fail as a matter oflaw. !d. Furthermore, where no actual controversy exists,
a request for a declaratory judgment must be denied. Olin Corp. v. Consolidated
Aluminum Corp., 5 F.3d 10, 17 (2d Cir. 1993).
Given the Court's holding dismissing plaintiffs CERCLA claims against
defendants for failure to substantially comply with NCP requirements in
remediating its Construction Area, it follows that plaintiff does not have
compensable expenses and, consequently, its request for a declaratory judgment
must fail as a matter oflaw. Similarly, plaintiffs request for a declaratory
judgment must likewise be denied because no "actual controversy" exists. Courts
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may not issue declaratory judgments based on pure speculation of future damages
Accordingly, plaintiffs request for summary judgment on its claim seeking a
declaratory judgment must be and hereby is denied.
E. Plaintiff's State Law Claims
Pursuant to 28 U.S.C. § 1367(a), "in any civil action of which the district
courts have original jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related to claims in the action within
such original jurisdiction that they form part ofthe same case or controversy
under Article III." Pursuant to 28 U.S.c. § 1367(c)(3), the district court may
decline to exercise supplemental jurisdiction when it has "dismissed all claims
over which it has original jurisdiction."
When a basis for original jurisdiction exists, a district court has discretion
to exercise jurisdiction over a plaintiffs supplemental law claims even when the
original federal claims are dismissed. Nowak v. Ironworkers Local 6 Pension
Fund, 81 F.3d 1182, 1191 (2d Cir. 1996). However, in the typical case in which
"all federal-law claims are eliminated before trial, the balance of factors to be
considered under the pendent jurisdiction doctrine-judicial economy, convenience,
fairness, and comity-will point toward declining to exercise jurisdiction over the
remaining state-law claims." Carnegie-Mellon University v. Cohill, 484 U.S. 343,
350 n.7 (1988).
Given the nature ofplaintiffs state law claims, the majority of which are
tort claims, and the dismissal of its federal CERCLA claims, the Court finds that
-62-
judicial economy, convenience and fairness will be better served by dismissing
plaintiffs state law claims without prejudice. See Ackoff-Ortega v. Windswept
Pacific Entertainment Co., 98 F. Supp. 2d 530, 536 (S.D.N.Y. 2000) (noting that
if the Court granted defendant's motion for summary judgment, it would revisit its
decision to exercise supplemental jurisdiction over plaintiffs state claims).
CONCLUSION
For all of the foregoing reasons, plaintiffs First, Second and Third Causes
of Action are hereby dismissed with prejudice. Plaintiffs Fourth, Fifth, Sixth,
and Seventh Causes of Action are hereby dismissed without prejudice.
Accordingly, NGSC's motion for summary judgment against plaintiff is
GRANTED. The federal defendants' motion for summary judgment against
plaintiff is GRANTED. Plaintiffs motion for summary judgment against NGSC
is DENIED. Plaintiffs motion for summary judgment against the federal
defendants is DENIED.
SO ORDERED.
Date: May 14, 2009

Central Islip, New York
Thomas C. Platt, U.S.D.l.
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Case 2:05-cv-01945-JMA-AKT Document 94 Filed 05/14/09 Page 1 of 63 PageID #: 1667

UNITED STATES DISTRICT COURT EDJN.y.

:~~~~~~-~~~~~~-~~-~:~-~~~--------X ~ M.& 1~10~.l

PLATT, District Judge.

("Town" or "plaintiff') seeks summary judgment against Northrop Grumman

judgment against plaintiff. The federal defendants move to have plaintiffs

Plaintiff's motion for summary judgment against NGSC is hereby

DENIED. Plaintiffs motion for summary judgment against the federal

defendants is hereby DENIED. NGSC's motion for summary judgment against

plaintiff is hereby GRANTED. The federal defendants' motion for summary

judgment is hereby GRANTED.

Plaintiff s Second Amended Complaint seeks the following relief:

a. As a First Cause of Action, pursuant to 42 U.S.C. § 9607, a

b. As a Second Cause of Action pursuant to 42 U.S.C. § 9613,

c. As a Third Cause of Action, plaintiff seeks a declaratory

d. As a Fourth Cause of Action based on defendants'

e. As a Fifth Cause of Action based on strict liability for

f. As a Sixth Cause of Action for restitution based on the

g. As a Seventh Cause of Action for contribution, a judgment

h. Plaintiff also seeks reimbursement for fees, expenses and

The Bethpage Community Park ("Park") is located on an eighteen (18)

formerly owned by Grumman Aircraft Engineering Corporation, later known as

Grumman Aerospace Corporation, a predecessor in interest to defendant NGSC.

of Environmental Conservation ("DEC") requested that NGSC obtain soil

Ctr. Stmt. ,-r 8.

Chromium is a hazardous substance as defined by the Comprehensive

Environmental Response Compensation and Liability Act ("CERCLA"). See 42

U.S.C. § 9601(14) (cross referencing statutes that define "chromium" and

"chromium compounds" as CERCLA hazardous substances); 40 C.F.R. § 302.4

(identifying "chromium" and "chromium compounds" as CERCLA hazardous

hazardous substances as defined by 42 U.S.C. § 9601(14) and 40 C.F.R. § 302.4.

required it to investigate the extent of the presence of contamination of the soil in

constructed." PIt. 56.1 Stmt. ~ 17.

Characterization Work Plan"; "Remedial Investigation/Feasibility Study Work

Plan"; "IRM Work Plan"; "Remedial DesignlRemedial Action Work Plan"; or

obligations were to be approved by the DEC ( PIt. Exhibits in Support of 56.1

The H2M Group, environmental consultants, conducted an analysis of the

concentrations exceeded 1 ppm in 48 of 141 boring locations; exceeded 10 ppm in

substances, including but not limited to arsenic, barium, beryllium, cadmium,

In November 2005, plaintiff submitted an Investigation Report and

throughout much of plaintiffs Construction Area and additional amounts in some

proposed plan and alternative remedies. NGSC 56.1 Stmt. ~~ 8, 9. In December

2005, plaintiff submitted a supplemental report prepared by H2M to the DEC

which proposed additional evacuation. NGSC 56.1 Stmt. ~ 10.

In correspondence dated February 10, 2006, the DEC recommended that

various remedial alternatives so as to select a cost-effective remedy for the soil

[guidance level] range." NGSC 56.1 Stmt. ~~ 13, 14.

The DEC's letter also advised plaintiff to evaluate remedial alternatives to

ensure selection of a "cost-effective remedy" and also commented that plaintiff

concluded that plaintiffs submission "actually provides a strong argument why

existent." NGSC 56.1 Stmt. ~~ 15, 16, 17.

In March 2006, the Town submitted its "Addendum to the Remedial

alternatives to address the soil contamination within the Construction Area

November 2005 Plan, as supplemented by its December 2005 submission was

million to implement. NGSC 56.1 Stmt. ~~ 20,23. Remedial Alternative 2 called

subject to the following:

Alternative 4. Accordingly the NYSDEC will approve the remedial

approved Remedial Alternative 2 as "fully protective of human health and the

require." NGSC 56.1 Stmt. ~ 26.

The DEC found that Remedial Alternative 2 was "fully protective of

Remedial Alternative 2 would have protected "human health and the

requirements. NGSC 56.1 Stmt. ~~ 32,33.

Additionally, the New York Department of Health stated that remedial

transportation and disposal efforts and remain protective of human health."

:~~---~:~-~~~--------X ~ M.& 1~10~.l

Stmt. 36,37,38; NGSC 56.1 Ctr. Stmt. 36,37,38.

differentiate between contractor-owned, contractor-acquired and government